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Monday, May 7, 2012

The Corporate Personhood And The 14th Amendment

Barry Yeoman writes in Mother Jones (November/December 2006 Issue), "When Is a Corporation Like a Freed Slave?" In rural Pennsylvania, township supervisors battling sewage sludge and hog manure stumble up against one of the biggest mysteries in constitutional law.

LICKING TOWNSHIP, PENNSYLVANIA, is a rolling swath of soybean fields and pastures in Clarion County, two hours northeast of Pittsburgh, with 500 residents and quite a few more cattle. Drive past the township hall, a converted one-room schoolhouse, and you might see a horse-drawn buggy parked in front, with an Amish family clustered around the pay phone outside. Farther down the road, you'll notice a rusty coal dragline tucked into the woods, stranded like the hull of an old freighter, a souvenir of the township's 20th-century mining boom. Among Clarion County's biggest events are the annual Horsethief Days, featuring bed and lawn mower races. In these parts, Republicans outpoll Democrats 2-to-1. "If you could picture the heart of Bush country north of the Mason-Dixon Line, this is it," says Mik Robertson, a produce farmer and one of the township's three elected supervisors.

Four years ago, Robertson and the other supervisors were debating an ordinance to restrict the spreading of toxics-laden sewage sludge on local fields—a major issue in an area that has become a destination for waste from Pittsburgh. The supervisors knew that messing with big business could come at a price: Three years earlier, another Pennsylvania township had passed an anti-sludge ordinance, only to be sued by a sludge hauler called Synagro, which argued that the township had infringed on its rights under the 14th Amendment, passed after the Civil War to guarantee "equal protection" to all. Synagro could make that argument because since the late 19th century, the Supreme Court has defined corporations as legal "persons," conferring on them many of the same rights that belong to flesh-and-blood citizens. And so, Licking's supervisors did something that has been variously described as creative, futile, or out-and-out revolutionary: They passed an ordinance declaring that henceforth, in their township, "Corporations shall not be considered to be 'persons' protected by the Constitution of the United States."

The measure was the brainchild of a brash 37-year-old attorney named Thomas Linzey, who has made a name for himself around the country taking on the principle of corporate personhood—an idea and legal precedent that undergirds much of the past century's rise in corporate power. The director of the Pennsylvania-based Community Environmental Legal Defense Fund, Linzey sees Licking Township's action as one of the opening shots of a movement that will redefine American democracy. "It's about going on the offensive," he says. "The dream is that 30 years out—and my heart sinks, because I don't know if we even have 30 years from an environmental perspective—other places will join hands as well, and lead to a rewrite of the U.S. Constitution."

LINZEY WAS FRESH out of law school in 1995 when he set up the Defense Fund, a group that worked mainly with African American communities battling incinerators and waste dumps. The activists would scour a company's permit application for technical errors, often persuading authorities to reject the facility. "We'd have a victory party," Linzey says. "Everybody would pat themselves on the back. Well, what would happen three months later? The corporate boys would be back, and they'd say to us, 'Thank you very much.' We were actually identifying the gaps in their applications."

Clean-cut, stocky, and blue-eyed, Linzey comes across as temperate, perhaps a little standoffish. But in front of a crowd, his voice takes on a preacher's timbre. His favorite verb is "drive" in its most aggressive sense—as in, "True people's movements seek to drive rights into the Constitution."

As Linzey kept racking up defeats through the '90s, he concluded that the regulatory system was a distraction, or worse. "We were working off a script that we hadn't written. After billions of hours spent by community groups around the nation"—and here his face reddens and his hand slams the table—"nothing was better. Nothing." Activists, he believed, were being channeled into an unwinnable process "like cattle through a chute": As long as the law placed the same value on corporate rights as it did on those of individuals, corporations would always triumph.

Though corporate personhood is now thoroughly ingrained in U.S. constitutional law, it would have been a foreign notion to the founders. For much of the nation's first century, corporations were seen as a means to an end, not unlike associations. They were "chartered," or called into existence, by the states, and their charters could be revoked at any time (a legal possibility now back in vogue among activists in several states); they were not considered "persons" until after the Civil War, when business magnates began to avail themselves of the 14th Amendment's antidiscrimination protections. In the landmark 1886 Supreme Court case Santa Clara v. Southern Pacific, a railroad company refused to pay a special county tax in California, arguing (much as sludge hauler Synagro would do in Pennsylvania more than a century later) that to treat it differently from everyone else violated its constitutional rights. Speaking from the bench, Chief Justice Morrison Waite announced, "The court does not wish to hear argument on the question whether the provision in the 14th Amendment...applies to these corporations. We are all of the opinion that it does."

After Santa Clara, federal judges began granting more and more rights to nonliving "persons." In 1922, the Supreme Court ruled that the Pennsylvania Coal Co. was entitled to "just compensation" under the Fifth Amendment because a state law, designed to keep houses from collapsing as mining companies tunneled under them, limited how much coal it could extract. In 1967 and 1978, businesses prevailed in Supreme Court cases citing the search-and-seizure provisions of the Fourth Amendment as protection against fire and workplace safety inspections.

Corporate lawyers have also taken a shine to the First Amendment. In 1978, the Supreme Court agreed with corporations claiming that the state could not limit their political spending in an antitax campaign. Almost two decades later, a federal appellate court struck down a Vermont law requiring that milk from cows treated with bovine growth hormone be so labeled. Dairy producers had a First Amendment right "not to speak," the court said. In California, Nike invoked the First Amendment to fight a lawsuit arguing that the company's public relations materials misrepresented sweatshop labor conditions.

Most recently, the Retail Industry Leaders Association has relied on the 14th Amendment's equal protection clause to fight Maryland's Wal-Mart law, designed to force the company to expand its spending on employee health care. The retail group has also sued Suffolk County, New York, which last fall passed a similar ordinance aimed at nonunionized supermarkets.

Defenders of corporate rights argue that while the concept may be counterintuitive, the alternative is worse: "If for-profits didn't have First Amendment rights, then Congress could pass a law requiring every retailer to fly an American flag out front," notes Kent Greenfield, a law professor at Boston College who has written extensively on corporate accountability. Ditto for the Fourth Amendment: "Would we really think it's a good thing for the FBI to go into any establishment without a search warrant?"

Yet given corporations' enormous resources, "equal rights" for industry can mean huge advantages—especially in the political arena. Last year, for example, Wal-Mart poured almost $400,000 into a ballot initiative to overturn a ban on certain big-box stores in Flagstaff, Arizona. Included in the media campaign was a newspaper ad comparing Wal-Mart's opponents to Nazi book burners. The retailer apologized but prevailed nonetheless, by 365 votes out of more than 17,000 cast. "What you've seen is the subsuming of the political process to the corporate agenda," says Thom Hartmann, author of Unequal Protections, a book about corporate personhood.

BY THE LATE 1990S, fear and anger over sludge application in rural Pennsylvania—fueled by the deaths of an 11-year-old who got sick after riding his dirt bike through a sludge-treated field, and a 17-year-old who fell ill after exposure to sludge at a farm—was running high. Thomas Linzey found himself fielding calls from local officials desperate for ways to battle the "biosolids" applicators, as well as the corporate hog farms whose stench sickened people for miles around. Municipalities had been used to keeping those nuisances at bay with their own waste ordinances; but in 1997, in response to agribusiness lobbying, the state began enforcing a law that invalidated the local rules. Residents packed schools and fire stations to air their grievances. "These are the people with the shitkickers and the John Deere hats," Linzey says. "These are the people who salt the roads in the wintertime and fix the roads in the summertime. We had rural farmers coming to community meetings with the Declaration of Independence in their back pockets."

To help the townships, Linzey wrote model ordinance after model ordinance. One banned corporations from owning farmland, an idea found on the books in nine states; 12 local governments in Pennsylvania passed it. Another banned companies with previous environmental violations from doing business in a township; 5 municipalities adopted that one. An ordinance requiring companies to do extra testing of sludge for health dangers has passed in more than 70 townships.

Business took note. The Pennsylvania Chamber of Business and Industry's newsletter editorialized against a "stronger force than evil space invaders: the radical agenda of militant environmentalists that seems to have taken possession of the township supervisors." One corporation sued, claiming that the township's restrictions violated its rights with regard to "equal protection, due process, taking without just compensation, and rights guaranteed under the commerce clause." Last year, agribusiness took the fight to the state Legislature, supporting a law under which the state attorney general could sue any local government for passing an ordinance that "prohibits or limits a normal agricultural operation." (The first four such lawsuits were filed this past June.) During debate on the measure, says Linzey, "the suits were out in full force. It was about the heaviest type of lobbying we had ever seen."

Into this fray stepped Supervisor Robertson, a former Peace Corps volunteer who had moved back to Licking Township in 1999 with his wife to grow tomatoes, berries, and garlic on a 95-acre farm fertilized with llama and goat droppings. In Licking Township, the chief qualification for supervisor is the ability to drive a road grader—elected officials do the pothole-filling themselves—and 42-year-old Robertson was appointed to fill a vacancy on the board. He's run twice since then, unopposed. "You don't have people beating down the doors to do this kind of stuff," he says wryly.

In 2002, Robertson learned that several farmers in Licking Township were planning to spread sludge on their fields, and he called Linzey. They discussed tightening local waste regulations, and then Linzey mentioned a model ordinance he'd written to strip corporations of personhood. "The more I looked at that ordinance, the more I liked it," says Robertson, "and the more I realized that it had implications well beyond sewage sludge. This is an issue that is really fundamental to American government." The measure passed unanimously, making Licking the second Pennsylvania township to take such a stance. Somewhat to Linzey's disappointment, no one sued.

PEOPLE FIGHTING corporate personhood like to think of themselves as heirs to the American Revolution. "The colonists realized they needed to tear up the very roots of colonialism, including corporate rule," says Jeff Milchen, director of the Montana-based ReclaimDemocracy.org [1], a fledgling group focused on corporate power. Indeed, the Revolution was partly an insurrection against entities like the East India Co., whose monopolistic tactics triggered the Boston Tea Party in 1773. The ordinances passed by the Pennsylvania townships, Milchen and others believe, are the modern-day version of such a backlash.

Linzey has his revolution all mapped out. First, local governments will keep passing anti-personhood measures until one of them triggers a lawsuit in the federal courts. This, in turn, will force the judiciary to reconsider the constitutional principles involved. Linzey doesn't expect to win such a case: "People are colonized to think we can turn to the courts for remedy," he says, "and that the judge will hit himself on the forehead and say, 'Oh my God, 200 years of corporate rights are wrong.'" Rather, Linzey expects a ruling in favor of corporations to "rip away the veil of disbelief," prompting even more grassroots organizing and local lawmaking. "You treat the courts as a means to building an army," he says—one that will eventually lead to overhauls of state constitutions, and finally the federal one. The U.S. Constitution, he says, simply focuses too much on "property and commerce," and eventually pressure will build on Congress to call a convention and start from scratch.

For now, though, the campaign remains stuck at Step One. "I'm not ready to say we have a movement," confesses Milchen. "We're not quite there yet." Notes Richard Grossman, who together with Linzey has taught a series of activist seminars around the country dubbed Democracy Schools: "The Populists had 40,000 lecturers organizing people across the U.S. We have five." Both Grossman and Linzey refuse to speak to journalists who haven't undergone their three-day training session; I was the first, to their knowledge, to abide by that rule and attend the seminar, at which a dozen earnest activists underwent a combination of people's history lessons and political shock therapy.

Last year, Linzey lost his biggest battle thus far: In a case involving a Pennsylvania developer, a federal judge called his personhood arguments "tortured" and "illogical" and said she had come "very close" to disciplining him for filing a frivolous lawsuit.

Lawrence Mitchell, a law professor at George Washington University and author of Corporate Irresponsibility, warns that Linzey's strategy is draining energy from more important battles. "I work with a lot of activist groups, and I sit at meetings banging my head on the table," he says. "This is deeply embedded constitutional law that no one's going to reverse." Mitchell believes activists' energy would be better spent on reforming state laws to make corporations more accountable.

And yet, Linzey, Grossman, and company keep drawing converts. The Democratic parties of Maine, New Hampshire, and Washington state have passed resolutions opposing corporate personhood and the constitutional rights it confers. Last March, the 4,600 residents of Barnstead, New Hampshire, approved an ordinance—designed to shield the town's water supply from commercial bottlers—that voids corporate personhood. And in California's Humboldt County, where the timber giant Maxxam and its contractors spent more than $350,000 to recall a crusading district attorney, voters this year approved a ballot measure banning campaign spending by nonlocal businesses, and specifying that "No corporation shall be entitled to claim corporate constitutional rights or protections in an effort to overturn this law."

Linzey knows that his undertaking appears quixotic but—perhaps fittingly—betrays not a hint of uncertainty. "The abolitionists did not seek to create a Slavery Protection Agency, or to make conditions for slaves a little better," he says. "They understood the Constitution left them remediless, and the only thing they could do was to change it."

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"To be ignorant of what occurred before you were born is to remain always a child. For what is the worth of human life, unless it is woven into the life of our ancestors by the records of history?" — Marcus Tullius Cicero